south tyneside hospital parking eye PCN

nyborrobyn

hi parking warriors!

just got a PCN from Parking eye as i stayed in the hosp car park1hr 22 mins....never actually left the car! was just going to send them a standard appeal which theyll most likely reject and get a popla code then argue not pre estimate of loss? the pcn says signs were clear, i probably wasnt looking but have dropped my other half off there and picked him up every day for a week and didnt even know they had parking eye.

was just wondering if anyone has had any recent luck with these folks?

Redx

there are hundreds of PE appeals etc on the forums like on here, too many to even look at, plus the wins are in the POPLA DECISIONS sticky thread in the stickies

appeal using the template, then go to popla

complain to PALS as well and try for a cancellation by the landowner (the trust)

dont try for one argument at popla, use all of them, including poor signage as well as not a gpeol , no contract , incorrect anpr, use all of them dont accept what PE tell you

use the ABC method

A= Accept nothing

B = Believe nobody

C = Challenge everything

not leaving the car is irrlevant, your vehicle was "parked" or "stopped" on private property

their ANPR records it IN and OUT, therefore "on site" for the duration

nyborrobyn

hi so my appeal to PE was rejected (unsuccessful due to the fact that valid/sufficient evidence was not provided that you were authorised to park there). some rubbish about being fully compliant with bpa code regs on signage etc. I have popla code, and i have sequential photographs as you drive into the carpark taken from a moving car which show how pants the signage is. will this be sufficient or would i need something of where i physically parked the car? the only evidence they have shown so far is that of me entering leaving so i dont know if they can later produce a photo of the car right in fromt of a sign?


was going to adapt a template from someone elses successfuly popla but just wondering if i should go overboard with 'evidence'?

thanks in advance for your help!

ColliesCarer

nyborrobyn wrote: »

....... so i dont know if they can later produce a photo of the car right in fromt of a sign? .........

Highly unlikely - they usually only use ANPR cameras located at the entrance and exit to the car park to capture the reg. no and what time the car entered and exited the car park.

IMO - it's better to keep your powder dry and save photo evidence for the stage when you rebut the evidence they send to POPLA - sending it too soon gives them the chance to rebut yours

nyborrobyn

oh i also changed address between recieving the charge notice and sending the appeal, and clearly stated a forwarding address and that i would not be responsible for further correspondance sent to the wrong address.....so they sent it to the wrong place anyway, is this worth including?

nyborrobyn

have drafted a popla appeal and would be grateful for a read over, its mostly cut and pasted from prev appeals but have tried to switch to my specific circumstances, having said that there are several bits i have left unchanged as i dont fully understand all of the rules/regs. Have added the blue section r.e ongoing case also.

I have sequential photos taken which unfortunately do not show the sign on entry to the carpark, but do show a sign with small wording further in to the carpark. I am unable to get back to the carpark to get anything further.

the design of the carpark is kind of a 'drive through' with some areas for staff and some pay and display which is confusing, would a map and marking where each photograph of mine was taken be helpful?

have run code through cowboys checker which has raised no issues:

I am the registered keeper and I wish to appeal a recent parking charge from ParkingEye. I submit the points below to show that I am not liable for the parking charge:

1) No genuine pre-estimate of loss
2) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability.
3) No standing or authority to pursue charges nor form contracts with drivers.
4) The signage was not readable so there was no valid contract formed.
5) The ANPR system is unreliable and neither synchronised nor accurate - evidence does not discount two visits shown as one.

1) No genuine pre-estimate of loss
This car park is Pay and Display and as far as I can ascertain as keeper, a payment was made. Having received the Notice in the post I had very little information so went and checked the signage and it seems that up to 2 hours would have cost no more than £4 so the only recoverable sum under the POFA 2012 is the sum of the alleged 'outstanding' parking charge = £4 at the most. Parking Eye have not told me these details, despite it being a prerequisite of Schedule 4.

The Operator cannot reasonably claim a broad percentage of their entire business running costs, as they operate various different arrangements, some where they pay a landowner a huge amount akin to a 'fishing licence' to catch motorists and some where they have pay and display, and others which are free car parks. I suggest there was never any advance meeting held with the client, nor was any due regard paid to establishing any 'genuine pre-estimate of loss' prior to setting the parking charges at this site. I put this operator to strict proof to the contrary and to explain how the calculation happens to be the same whether the alleged overstay is 40 minutes or 40 hours.

The Operator alleges 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. This must amount in its entirety, only to a genuine pre-estimate of loss, not some subsequently penned 'commercial justification' statement they have devised afterwards, since this would not be a pre-estimate. Any later 'new' calculation (even if dressed up to look like a loss statement) would fall foul of Mr Greenslade's explanation abut GPEOL in the POPLA 2014 Report and would also falls foul of the DFT Guidance about private parking charges.

In this case, even if the Operator contends there was a small outstanding P&D sum (which they have missed off the Notice to Keeper, so I have no idea) they certainly cannot claim an inflated amount. A GPEOL calculation must be a sum which might reasonably flow directly as a result of a parking event.

An Operator cannot include 'staff time spent on appeals' and other tax deductible business costs such as administration, accounting & equipment. Appeals staff are already paid to do their admin job which includes handling appeals among other tasks, so there is no question that there is any 'loss' caused by these staff who are not 'significantly diverted' from their normal activity when they deal with challenges or POPLA stage.

Judge Charles Harris QC in 'A Retailer v Ms B' (where the Claimant tried to claim a 'loss' from a consumer for 'staff and/or management time investigating') stated:
"[14] The claimant in the instant case has not established either that the staff in question were significantly diverted from their usual activities or that there was any significant disruption to its business... Nor was there any loss of revenue generation. [15] The two security people, far from being diverted from their usual activities, were in fact actively engaged in them. They were doing just what the claimants paid for them to do... [16] So the claim in respect of staff time cannot, in my judgment, be established. I was not clear if, at the end of the case, the other two alleged heads of loss – administrative costs and security equipment costs – were still being sought. But, if so, these claims too cannot succeed. Neither can be shown to be attributable to the defendants’ activities. The amounts spent by the claimant would have been identical had the defendants stayed at home... [17] It follows that the claims must be dismissed’’

http://www.farrarsbuilding.co.uk/cms...-v-B-K_001.pdf

In the case of private parking charges in general - including this Operator - the administrative staff and Managers who handle challenges and POPLA appeals are not 'significantly diverted from their usual activities', nor do appeals cause any 'significant disruption to its business', nor was there any significant loss of revenue generation. So none of the 'staff time' can be properly included in a GPEOL calculation. If POPLA do accept a small amount of staff time in a GPEOL sum then this could only be 1% of the typical time taken for POPLA appeals, because only 1% of cases follow the POPLA route. No higher figure can have been in the reasonable contemplation of the Operator at the time of the parking event because the chances of POPLA are even less than 'debt collector stage' both being far too remote to be likely.

This charge cannot be 'commercially justified' either, so this Operator would be wasting their time to adduce the flawed and not persuasive 'ParkingEye v Beavis' small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway, due to be heard in February 2015). POPLA Assessor Chris Adamson has stated in June 2014 that:

''the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''

2) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability
As this was a Pay/Display car park, the Notice to Keeper (NTK) has to set out the position clearly in terms of 'describing the parking charges due' which remained unpaid as at the day before the date of issue of the PCN. Due to this timeline stated in Schedule 4, these 'parking charges due' can only be a tariff the driver should have paid, because no higher sum was 'due' before the PCN was even printed!

I can see from the limited information before me in the NTK, only that the car stayed for a certain amount of time. It is unclear what the contravention was; 'either/or' an overstay or failure to pay. This does not create any certainty of terms, it leaves a keeper to wonder what the hourly rate tariff even was and whether the driver paid nothing, or paid too little, or paid only for half an hour or an hour, or paid in full but put in the wrong car registration, or some other event. This Operator has the technology to record car registrations, to collect/record payments and to take photos of cars arriving and leaving, so it would be reasonable to assume that they are able - and indeed are required under the POFA - to state on the NTK the basic requirements to show a keeper how the 'parking charges' arose and the amount of outstanding parking charges (tariff) as at the day before the PCN was issued.

These are the omissions:
''9(2)The notice must—
(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid...'

The validity of a NTK is fundamental to establishing liability for a parking charge. As POPLA Assessor Matthew Shaw stated: ''Where a Notice is to be relied upon to establish liability...it must, as with any statutory provision, comply with the Act.'' This NTK was not compliant due to the omissions of statutory wording, so it was not properly given and there is no keeper liability.

3) No standing or authority to pursue charges nor form contracts with drivers
I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, ParkingEye must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put ParkingEye to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between ParkingEye and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to ParkingEye.

4) The signage was not readable so there was no valid contract formed between ParkingEye and the driver
The only signs are too small to read from a moving vehicle as well as away from the Pay & Display machine, which is not a 'sign' nor does it communicate full contractual terms & conditions. Those signs which do show full contractual terms and conditions, do so in such tiny writing that there is no oppourtunity for a driver in a moving vehicle to read or even notice them. Signs were not so prominent among all the other signage on site that they were ever seen by the occupants of the car. Any photos supplied by ParkingEye to POPLA will no doubt show the signs in daylight or with the misleading aid of a close up camera and the angle may well not show how high the sign is nor the fact the ParkingEye signs are one of many pieces of information in the clutter of this busy customer car park. As such, I require ParkingEye to state the height of each sign and the font size of the contractual information in their response and to show contemporaneous photo evidence of these signs, taken at the same time of day without photoshopping or cropping and showing where the signs are placed among a myriad of other information bombarding a customer. I have included sequential photographs taken from a moving vehicle upon entry and as I negotiated the carpark. As you can see signage was not compliant.

Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.

5) The ANPR system is unreliable and neither synchronised nor accurate, and there is no evidence that this was just one visit
ParkingEye's evidence shows merely photos of a car driving in and out which does not discount the possibility of a double visit to the carpark. It is unreasonable for this operator to record the start of 'parking time' as the moment of arrival in moving traffic if they in fact offer a pay and display system which the driver can only access after parking and which is when the clock in fact starts. The exit photo is not evidence of 'parking time' at all and has not been shown to be synchronised to the pay and display machine clock nor even to relate to the same parking event.

As keeper I cannot discount that this may have been a double visit (possibly even with two drivers since the car has more than one driver). Or the driver may have driven in, realised it was pay and display then driven out to get change before returning (and of course the ANPR cameras show only the first and last visits). The BPA even mention this as an inherent problem with ANPR on their website;
http://www.britishparking.co.uk/How-does-ANPR-work
The BPA's view is: 'As with all new technology, there are issues associated with its use:
a) Repeat users of a car park inside a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur.
b) Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner...'

Even if an Operator shows a list with 'no record' of that car registration in between the times, this wouldnot discount the 'double visit' possibility as it is well known that car registrations are completely missed when a vehicle is followed closely by a higher vehicle, or by a temporary interruption in the camera recording. Or even an item temporarily obscuring the camera from picking up one car registration, such as a passing bird or wind-blown carrier bag or leaves appearing in front of the camera, even for moments, would stop a record appearing of a car leaving in between the stated times. I put the Operator to strict proof to the contrary. All camera records could be checked and this Operator would still be unable to refute the 'double visit' possibility, since they don't bother to record continuous footage, this not being CCTV. If I am wrong then they must show POPLA a complete 'video' that they allege shows no more entries or exits that day by this car.

Further, this Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the BPA Code of Practice and to have signs stating how the data will be stored andused. I say that Parking Eye have failed to clearly inform drivers about the cameras and how the data will be used and stored. . I have also seen no evidence that they have complied with the other requirements in that section of the code in terms of ANPR logs and maintenance. Indeed, I question the entire reliability of the system. I require that ParkingEye present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times.

The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. It is believed that the Supreme Court’s decision in ParkingEye v Beavis will have an impact on the outcome of this POPLA appeal. If the operator does not cancel this charge and/or if there is no other ground upon which the appeal can be determined, I ask that my appeal is adjourned pending the Beavis case.


This concludes my POPLA appeal.

Yours faithfully,

thanks in advance everyone!

Northlakes

So long as you get your appeal in on time, it is more important to get it right.

You have cut and pasted some older appeals rather than getting the wording tuned to your circumstances.

Under GPEOL you refer to Beavis going to the Court of Appeal. This happened months ago and is no longer relevant.

The POPLA winning point is now the standing with landowner so that needs to be the first point and GPEOL needs to be the last.

Other posters who know these appeals inside out I'm sure will comment further.

Did you complain to PALS as requested in post#2?

salmosalaris

I put Parking Eye to strict proof that payment was not made by the driver and that consequently there was any breach of contract . Should it be proven that there was a breach Then the contract entered into between the driver and Parking Eye is a simple financial consumer contract. An offer of parking for a set sum is made. This makes plain that the sum of £ 100 being demanded is nothing other than a penalty clause designed to prevent drivers from underpaying or to profit from inadvertent errors and is consequently unenforceable. As this is a simple financial contract any claim for liquidated damages for breach of contract must represent a genuine pre estimate of loss. If Parking Eye believe inadequate payment was made ( which their PCN fails to make clear ) their demand should be for any unpaid tariff as that would be their only loss . The vehicle parked for 1 hrs and 22 minutes according to Parking Eye, a stay that would be authorised for payment of
£ 4-00. £100 is quite clearly not a genuine pre estimate of their loss and is clearly extravagant and unconscionable . If Parking Eye believe their charge is a genuine pre estimate of their loss I demand they produce a detailed and itemised breakdown of how this was calculated.
I would refer the POPLA adjudicator to the persuasive remarks of Sir Timothy Lloyd in the judgment handed down by the Court of Appeal in the case of Parking Eye v Barry Beavis. In that situation the penalty charge was justified on the basis that it was necessary to deter motorists stayinglonger than allowed to facilitate the turnover of free parking places . It was determined that the contract was not a financial one in that there was no economic transaction between Parking Eye and the motorist. This is in stark contrast to the present case where there is an economic transaction between Parking Eye and the motorist and no restriction on the time of stay was made provided payment was made .This car park is no different to any other commercial enterprise . There can be no argument of commercial justification allowing what would otherwise be a clear penalty simply because a small payment was purportedly not made or when the vehicle would otherwise have been welcome to park as it did .A contractual term whose sole motive is to deter non payment is the very essence of an unlawful penalty. Analysis of the excerpt from the judgment below clearly demonstrates that the Court of Appeal would have considered the charge in this case as an unenforceable penalty .This case can be clearly distinguished from Parking Eye v Beavis the arguments and judgment of which are irrelevant in this situation.


"43. It is clear that the purpose of the £85 parking charge is to deter those who use the car park from overstaying beyond the free permitted two hours.
44. All the previous cases shown to us have concerned contracts of a financial or at least an economic nature, where the transaction between the contracting parties can be assessed in monetary terms, as can the effects of a breach of the contract by one party or the other. Sometimes such measurement is difficult because of inherent uncertainties, and in those an agreed liquidated damages provision may be upheld for those reasons. But, however difficult it may be to measure, it is clear that there are economic and commercial effects on the parties
. 45. The contract in the present case is entirely different. There is no economic transaction between the car park operator and the driver who uses the car park, if he or she stays no longer than two hours; there is no more than (for that time) a gratuitous licence to use the land. The operator affords the driver a free facility. That facility is, of course, of economic value to the driver, as well as of convenience, in assisting the driver to visit the shops in the shopping centre which the car park serves. It is thus useful to Judgment Approved by the court for handing down. ParkingEye -v- Beavis the driver, being close to the shops, and free. It is also useful to the shopkeepers, in encouraging visitors, and in particular in encouraging a turnover of visitors because of the two hour limit. A car owner cannot simply come to the car park and park there all day. To do that would be to clog up the facility and to prevent those arriving later from using the park for its intended purpose.
46. The terms of use of the car park need, therefore, to provide a disincentive to drivers which will make them tend to comply with the two hour limit. That is afforded by the parking charge of £85. It would not be afforded by a system of imposing a rate per hour according to the time overstayed, unless that rate were also substantial, and well above what might be regarded as a market rate for the elapsed time, even if the market rate were in some way adjusted to take account of the benefit to the driver of the first two hours being free.
47. It seems to me that the principles underlying the doctrine of penalty ought not to strike down a provision of this kind, in relation to a contract such as we are concerned with, merely on the basis that the contractual provision is a disincentive, or deterrent, against overstaying. When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker to the innocent party, should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) 6 Bing. 141 at 148: “But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.”
48. Lord Dunedin referred to this in his proposition 4(b) in Dunlop v New Garage, at [1915] AC 79, at 87.
49. In a case such as the present, however, for the law to prohibit a provision such as the overstaying charge, on the basis that it bears no relationship to the loss (if any) suffered by the car park operator would fail to take account of the nature of the contract, with its gratuitous but valuable benefit of two hours’ free parking, and of the entirely legitimate reason for limiting that facility to a two hour period.
50. It is an oddity of the facts that the respondent appears not to make any money out of the contract unless drivers do overstay, so enabling Mr Hossain to argue that, so far from suffering loss by a driver overstaying, the respondent only stands to gain by that breach of contract (though of course if the appellant is right and the parking charge is unenforceable, the operator does not stand to gain anything under any circumstances). The law would allow damages for trespass against the overstayer without regard to what the operator would have done but for the trespass: see for example Swordheath Properties v Tabet [1979] 1 WLR 285. Thus, the actual effect of the trespass on the car park operator’s position is not relevant in any event. However, unless the defendant’s occupation has been of particular value to him, the compensation would Judgment Approved by the court for handing down. ParkingEye -v- Beavis be limited to the market value of the occupation during the period of trespass. That would provide no disincentive against overstaying.

51. This is not to say that the rules about penalties could have no application to such a case. If the charge were grossly disproportionate, it could fall foul of this principle. It would be extravagant and unconscionable. But, as Moore-Bick LJ says, that is not this case, where the charge is £85 for any period of overstaying, long or short, and is reducible to £50 on prompt payment. The judge held that the charge was not improper in its purpose or manifestly excessive in amount, and this was not challenged on appeal. I agree with Moore-Bick LJ that an intention to deter, by means of a term or terms which seek to impose manifestly excessive obligations in a commercial case, may well show that the provision is extravagant and unconscionable. In a case of the present type, which is not a commercial contract, it seems to me that an intention to deter is not sufficient in itself to invalidate the term. The term must in itself amount to something which is extravagant and unconscionable if it is to be found invalid under the rules about contractual penalties."

salmosalaris

The charge is clearly an Unfair Term under UTCCR 1999
When a vehicle is permitted to park for a sum of £4 , a charge of £100 for supposedly failing to make that payment can be viewed as nothing other than disproportionate to any possible loss without considerable intellectual dishonesty .

nyborrobyn

thanks for the contributions folks, is the above to replace my out dated draft or to add into it? thank you